Geiselstellungen im Corpus Iuris Civilis Kaiser Justinians und im Corpus Iuris Canonici

Hostageship, classified among the “Archetypen des Rechts” (lit. ‘archetypes of law’) by Werner Ogris (id., Geisel, in: Handwörterbuch zur deutschen Rechtsgeschichte, vol. 1, 2nd ed., Berlin 2008, col. 2006–2010, here: col. 2006), was a common tool to establish trust for making agreements throughout the entire Middle Ages. This thesis analyses the relating high and late medieval legal standards. Main sources are the Corpus Iuris Civilis and the Corpus Iuris Canonici. Furthermore, other sources of law like royal constitutions and diplomas, territorial and urban laws (iura propria), law books, etc. and their interpretation by medieval jurists are investigated regarding their regulations on hostageship. The (eastern) Roman emperor Justinian (reign 527–565) promulgated several legal compilations between 529 and 534 (amended by later novellas), which have been known as the Corpus Iuris Civilis since the 13th century. As a result of Justinian’s reconquests of formerly Roman territories in the Latin West, these legislations were also enacted, e.g., in Italy. The Digesta or Pandectae (533), a revised and interpolated selection of works by classical Roman jurists, primarily of the 2nd and 3rd century, are of special interest to the research issue. In the entire Corpus Iuris Civilis hostages (obsides) are only mentioned four, or rather, five times in the Digests (Dig. 28.1.11, Dig. 48.4.1 § 1, Dig. 48.4.4 pr., Dig. 49.14.31–32). In the Corpus Iuris Canonici—a collective term for various compilations of canon law beginning with the Decretum Gratiani (around 1140), a private collection by Gratian who taught canonical law in Bologna—hostageship is mentioned once in the Decretum and twice in the Liber extra, enacted by Pope Gregory IX 1234 (DG C. 23 q. 8 c. 18, X 1.43.11, X 2.24.9). But hostageship is never the point of interest, instead it is noted in different contexts. Nevertheless, these mentions provide a revealing insight into the pontifical involvement in grants of hostages and illustrate the social, economic, and political changes in Latin Europe since the High Middle Ages. The norms of the main sources regarding hostageship are subjected to a diachronic and synchronic comparison, which considers, in particular, the interpretation of these legal passages by the high and late medieval legistic and canonical jurisprudence. Concerning Roman-Justinian law, this medieval exegesis needs to be contrasted with the ancient purpose of the norms: in the Latin West there was no continuous reception of Justinian’s legal texts which had largely fallen into oblivion between the 7th and 11th century. After their ‘rediscovery’, jurisprudence reached a new zenith—inextricably linked with the emergence of the law school of Bologna. As a result, further law schools/universities were established all over Latin Europe. Right here Roman civil and ecclesiastical canon law was academically adapted, connected and—often referred to as ‘utrumque ius’ (‘both laws’) or, not always congruent, ‘ius commune’ (‘common law’)—merged argumentatively. This thesis reveals how the high and late medieval jurists such as Accursius, Bartolus de Saxoferrato, Henricus de Segusio, or Nicolaus de Tudeschis evaluated and edited the norms regarding hostages based on both legal spheres. Furthermore, the research question is examined whether the ‘rediscovery’ of Justinian’s legal compilations and the emerging legistic and canonical jurisprudence had an impact on the, compared to earlier epochs, strong changes of forms and conditions of hostageship since the 11th and 12th century. A critical case study on historical examples demonstrates how legal norms and actual practices of hostageship corresponded in the High and Late Middle Ages.